United States District Court, N.D. West Virginia
MARK H. FRYE and LISA FONNER, Plaintiffs,
THE MARSHALL COUNTY COAL COMPANY, a Delaware corporation and McELROY COAL COMPANY, a Delaware corporation, Defendants.
MEMORANDUM OPINION AND ORDER CONFIRMING PRONOUNCED
RULING DENYING DEFENDANTS' MOTION TO DISMISS
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
for the defendants, The Marshall County Coal Company and
McElroy Coal Company, removed this civil action to this Court
from the Circuit Court of Marshall County, West Virginia. The
case arises from the defendants' longwall mining and oil
and gas well plugging operations under and adjacent to
certain property in Marshall County. The plaintiffs are Mark
H. Frye (“Mr. Frye”), the owner of the subject
property, and Lisa Fonner (“Ms. Fonner”), a
resident of the subject property. Count I of the original
complaint alleges that, during and subsequent to the
defendants' operations, the plaintiffs noticed damage to
the property, the structures thereon, and the natural water
supplies. The plaintiffs allege that the defendants have
failed to correct the damages or adequately compensate both
plaintiffs for the damages. The plaintiffs also allege that
Ms. Fonner has contracted Klebsiella Pneumoniae as a result
of the back-up of gray water/septic water in the basement of
the residence. Count II of the original complaint alleges
that the defendants have violated their duty to the
plaintiffs to maintain the value and reasonably foreseeable
use of the overlying surface lands, in addition to several
other duties. Count II also asks for punitive damages. Count
III of the original complaint is a stand-alone claim for
defendants have filed a partial motion to dismiss. The motion
asks the Court to dismiss (1) the Count III stand-alone claim
for punitive damages, (2) any general requests and/or claims
for punitive damages contained with the complaint, and (3)
Ms. Fonner's claims for property damage and claims for
“annoyance and inconvenience” arising out of the
alleged property damage. The defendants argue that Count III
should be dismissed because there is no separate cause of
action for punitive damages in West Virginia. The defendants
contend that the general request for punitive damages should
also be dismissed because the complaint does not provide any
facts in support of a punitive damages claim. Lastly, the
defendants assert that Ms. Fonner does not have standing to
pursue any claim for, or arising out of, property damage
because she does not own the property at issue.
plaintiffs did not respond to the defendants' partial
motion to dismiss. However, after the defendants filed their
partial motion to dismiss, the plaintiffs timely filed a
amended complaint. The amended complaint removes the
stand-alone claim for punitive damages but still includes a
general request for punitive damages. The amended complaint
also removes any property-related damage claim as to Ms.
parties, by counsel, appeared before this Court for a status
and scheduling conference on August 1, 2017. The Court ruled
on the partial motion to dismiss at that time, and this
memorandum opinion and order serves to confirm that ruling.
assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a court must accept all well-pled facts
contained in the complaint as true. Nemet Chevrolet, Ltd
v. Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir.
2009). However, “legal conclusions, elements of a cause
of action, and bare assertions devoid of further factual
enhancement fail to constitute well-pled facts for Rule
12(b)(6) purposes.” Id. (citing Ashcroft
v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). This Court also
declines to consider “unwarranted inferences,
unreasonable conclusions, or arguments.” Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26
(4th Cir. 2009).
often been said that the purpose of a motion under Rule
12(b)(6) is to test the formal sufficiency of the statement
of the claim for relief; it is not a procedure for resolving
a contest about the facts or the merits of the case. 5B
Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1356 (3d ed. 1998). The
Rule 12(b)(6) motion also must be distinguished from a motion
for summary judgment under Federal Rule of Civil Procedure
56, which goes to the merits of the claim and is designed to
test whether there is a genuine issue of material fact.
Id. For purposes of the motion to dismiss, the
complaint is construed in the light most favorable to the
party making the claim and essentially the court's
inquiry is directed to whether the allegations constitute a
statement of a claim under Federal Rule of Civil Procedure
8(a). Id. § 1357.
complaint should be dismissed “if it does not allege
‘enough facts to state a claim to relief that is
plausible on is face.'” Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “Facial plausibility is established once the
factual content of a complaint ‘allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Nemet
Chevrolet, 591 F.3d at 256 (quoting Iqbal, 129
S.Ct. at 1949). Detailed factual allegations are not
required, but the facts alleged must be sufficient “to
raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555.
Court found that two of the assertions in the partial motion
to dismiss have been remedied by the amended complaint.
First, the amended complaint removed Count III, the
stand-alone claim for punitive damages. Second, the amended
complaint withdrew all property-related damages claims as to
Ms. Fonner. The only remaining property-related damages
claims are as to Mr. Frye, which the partial motion to
dismiss did not challenge. Thus, the Court denied as moot
both of those parts of the partial motion to dismiss.
the general claim for punitive damages, this Court construed
the complaint in the light most favorable to the plaintiffs
for the purposes of the partial motion to dismiss. The Court
found that the plaintiffs have made factual allegations that
could result in an award of punitive damages. Discovery will
be required to determine whether punitive damages are
appropriate in this case, but, at the motion to dismiss
stage, this Court must accept as true the plaintiffs'
allegations that punitive damages are justified. Thus, the
partial motion to dismiss could not be granted based on the
defendants' argument that there are no facts alleged that
sufficiently support a claim for punitive damages. Rather,
the allegations relating to the request for punitive damages
are matters to be developed in discovery.
that it cannot be determined at that stage whether punitive
damages are justified, the Court looked at only whether the
plaintiffs have adequately pled their claims such that there
are plausible grounds for relief under West Virginia law.
West Virginia law allows for an award of punitive damages
“[i]n actions of tort, where gross fraud, malice,
oppression, or wanton, willful, or reckless conduct or
criminal indifference to civil obligations affecting the
rights of others appear, or where legislative enactment
authorizes it.” Manor Care, Inc. v. Douglas,
763 S.E.2d 73, 96 ( W.Va. 2014). The plaintiffs allege in
their amended complaint that “[t]he Defendants'
failure to provide for replacement, repair or compensation to